Citation Nr: 0329393
Decision Date: 10/28/03 Archive Date: 11/05/03
DOCKET NO. 02-19 553 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boise,
Idaho
THE ISSUE
Entitlement to a total disability rating for compensation
purposes due to individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
C. Dillon, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1943 to March
1946.
This matter arises before the Board of Veterans' Appeals
(Board) on appeal from an April 2002 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Boise, Idaho, that denied the above claim.
In February 2003, the veteran appeared at the Boise RO and
testified at a personal hearing. A transcript of the hearing
is of record.
REMAND
The President of the United States signed into law in
November 2000 the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This act
introduces several fundamental changes into the VA
adjudication process. See 38 C.F.R. §§ 3.102, 3.156(a),
3.159, 3.326(a) (2003). Under the VCAA, VA's duty to notify
and assist has been significantly expanded.
VA must notify the veteran of evidence and information
necessary to substantiate his claim and inform him whether he
or VA bears the burden of producing or obtaining that
evidence or information. 38 U.S.C.A. § 5103(a) (West 2002);
38 C.F.R. § 3.159(b) (2003); Quartuccio v. Principi, 16 Vet.
App. 183 (2002) (holding that section 5103(a), as amended by
VCAA, and § 3.159(b), as recently amended, require VA to
inform claimant of which evidence VA will provide and which
evidence claimant is to provide, and remanding where VA
failed to do so).
In this case, the Board finds that remand is required for
compliance with the duty to notify, as the record does not
show the veteran was provided adequate notice for the issue
on appeal. Since the issuance of the April 2002 rating
decision denying entitlement to a TDIU, the veteran has not
received a VCAA evidence-development letter. The September
2001 rating decision that initially addressed the TDIU issue,
the April 2002 rating decision, the November 2002 statement
of the case, and the March 2003 supplemental statement of the
case (SSOC) do not contain any citation or discussion of VA's
enhanced duty to notify and assist.
The record indeed contains a VCAA evidence-development
letter, but it was issued in May 2001, before the current
claim had even commenced. Furthermore, it was issued for a
different type of claim, an increased rating claim, and only
discusses what the evidence must show to establish
entitlement to an increased rating.
The Board notes that the United States Court of Appeals for
the Federal Circuit invalidated the 30-day response period
contained in 38 C.F.R. § 3.159(b)(1) as inconsistent with
38 U.S.C.A. § 5103(b)(1). Paralyzed Veterans of America v.
Secretary of Veterans Affairs, No. 02-7007, -7008, -7009, -
7010 (Fed. Cir. Sept. 22, 2003). The RO should therefore
ensure that VA's notice to the veteran includes the requisite
time allowed to respond to an RO request for additional
information or evidence.
Because this case is being remanded for the above reason, the
RO should take this opportunity to ensure a complete record
and comply with further due process concerns.
The Board received evidence after the issuance of the last
SSOC. This evidence, an August 2003 letter from the VA
Medical Center (VAMC) in Spokane, Washington, while virtually
identical to previously submitted statements, should be
reviewed by the RO prior to the issuance of an SSOC. See
38 C.F.R. § 19.31 (2003); see also Disabled American
Veterans, et. al., v. Secretary of Veterans Affairs, 327 F.3d
1339 (Fed. Cir. 2003).
The August 2003 letter from the VAMC in Spokane suggests
there may be outstanding VA medical records pertinent to the
claim. Also, the veteran testified at a May 2001 hearing
that he has in his possession medical records that may be
pertinent to the claim but not of record.
Accordingly, this case is REMANDED to the RO for the
following actions:
1. The RO must review the claims file
and ensure that all duty to notify
obligations have been satisfied in
accordance with the recent decisions in
Quartuccio v. Principi, 16 Vet. App. 183
(2002) and Paralyzed Veterans of America
v. Secretary of Veterans Affairs, as well
as 38 U.S.C.A. §§ 5102, 5103, and 5103A
(West 2002), and any other applicable
legal precedent.
2. Ask the veteran to identify all VA
and non-VA health care providers since
2001 that have treated or evaluated his
service-connected psychiatric disorder or
have discussed his employability in any
way. Obtain records from each health
care provider the veteran identifies. In
any event, obtain copies of records of
treatment of the veteran from 2001 from
the Spokane VAMC.
3. Thereafter, the RO should review the
claims file and ensure that no other
notification or development action, in
addition to that directed above, is
required. If further action is required,
the RO should undertake it before further
adjudication of the claim.
4. The RO should then readjudicate the
veteran's claim, with application of all
appropriate laws and regulations,
including consideration of any additional
information obtained as a result of this
remand and the evidence associated with
the claims file since the March 2003
SSOC. If the decision with respect to
the claim remains adverse to the veteran,
he and his representative should be
furnished an SSOC and afforded an
appropriate period of time within which
to respond thereto.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.43 and 38.02.
_________________________________________________
HOLLY E. MOEHLMANN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).